Jersey Unreported Judgments

[2009]JRC060E

ROYAL COURT

(Samedi Division)

3^rd April 2009

The Attorney General

-v-

Curtis Warren

John Alan Welsh

James O'Brien

Jason Woodward

Paul Hunt

Oliver Lucas

Ruling on antecedent records of O'Brien.

J. C. Gollop, Esq., Crown Advocate assisted by Advocate D. S. Steenson.

Advocate S. E. Fitz for Welsh.

Advocate E. Le Guillou for O'Brien.

Advocate D. Gilbert for Woodward.

Advocate M. J. Haines for Hunt.

Advocate M. L. Preston for Lucas.

Curtis Warren acting on his own behalf.

Advocate R. Tremoceiro as an amicus to the Court.

RULING

THE commisioner:

1.        I next proceed to deal with the antecedent record of James O'Brien.

2.        James O'Brien is a defendant on trial, on the face of the decision in AG v Styles and Others [2006] JLR 210 his previous conviction might appear to be inadmissible.  The Crown base their application on the ground that this is admissible evidence, as being similar fact evidence.  The Court of Appeal in Styles recognised that such evidence could have powerful probative force. 

3.        The question is whether the Crown should be permitted to adduce in evidence the fact that O'Brien has previously imported cannabis into Jersey from the Normandy coast in 2002 by using his speedboat for the purpose, and also the fact that he was convicted of an offence for so doing. 

4.        Before such evidence can be admitted in Court certain tests have to be applied.  Having considered the English case of DPP v P [1991] 2 A.C. 447 and O'Brien v Chief Constable (South Wales) [2005] 2 AC 534, the Court of Appeal in Styles held, at paragraph 14 that the correct approach involved a two stage process:-

"The first stage is the test of relevance, whether the evidence is logically probative or disprobative of some matter which requires proof (ibid., at para. 69).  In a criminal case, the second stage involves the balancing of the probative force of the evidence against the degree of prejudice to which it may give rise (ibid., at para. 71)."

5.        In Styles the method of importation which was actualy adopted was the rare, if not unique means, of dropping the drugs from a light aircraft.  In the present case the method which the Crown allege it was proposed to adopt was the much more common one of importation by boat.  The defence submit that with modern navigational aid such a passage does not require the possession of sophisticated navigational skills and knowledge, therefore, the argument runs, the importation could have been accomplished by many people and the fact of O'Brien's previous importation lack the probative force which was present in the Styles case.  I agree that the evidence relied on in the present case does not have the degree of singularly unique features which were present in Styles, nevertheless I take the view that the number of men in Jersey who would be willing and able to carry out such an unlawful and potentially hazardous operation, as it is alleged was required here, and who possessed a boat suitable for doing so must be few.  The evidence which it is proposed to adduce is logically probative that the defendant, James O'Brien, was one of them. 

6.        It should be borne in mind that in Styles there was some dissimilarities between the facts of the two cases, the offences took place in different countries and over widely separated routes, whereas in the present case the importation is alleged to have been intended to follow the precise, or at least very similar route, to that adopted by O'Brien on the earlier occasion.  Significantly the routes were between the same countries and the passage which had to be planned and navigated was through the same sea area involving identical skills of seamanship and navigation and knowledge of the outlying hazards of the coast of Jersey. 

7.        This evidence, in my view is relevant to the question of identification and whether O'Brien was a likely candidate for selection as a member of the conspiracy to carry out the role of importing drugs into Jersey by sea or boat courier, as the Crown put it.  It is also evidence which goes to explain conversations which it is alleged O'Brien had with Welsh and the meaning of the word "it" as being the subject matter of the enterprise, which was drugs.  In my opinion the evidence is also relevant and admissible as tending to show that the defendant has been otherwise involved in drugs, so as to prove knowledge of the purpose of the conspiracy and to rebut a defence of innocent involvement. 

8.        I have carried out the balancing exercise which is required of me, I recognise that to admit the evidence would have a highly prejudicial effect, nevertheless I am satisfied that this is outweighed by its probative value.  I have also considered my discretionary power to exclude the evidence and my powers under Article 76 of the Police Procedures and Criminal Evidence (Jersey) Law 2003. 

9.        In my judgment fairness of the proceedings would not be adversely affected by the admission of the evidence.  Accordingly I reach the position where I am satisfied to the criminal standard of proof that the evidence, not only of the facts of the previous importation but also the fact that the accused has been convicted of an offence, are admissible in evidence.  That being so the Crown have satisfied me by reliance on the provisions of Article 72(3) that the evidence of conviction is admissible in evidence as one of the statutory exceptions referred to in the Styles case.

Authorities

AG v Styles and Others [2006] JLR 210.

DPP v P (1991) 2 App. C. 447.

Police Procedures and Criminal Evidence (Jersey) Law 2003.

DPP v P [1991] 2 A.C. 447.

O'Brien v Chief Constable (South Wales) [2005] 2 AC 534.